The Authors Guild Forgets They Lost the Google Books Case, Proposes an ASCAP-like Agency to Solve the Issue

When The Authors Guild lost first the HaithiTrust case and then the Google Books case, I knew that they would not rest until they had successfully countered these two fair use decisions.

I was expecting to report on appeals filed by The Authors Guild, but it now seems that they are pursuing a legislative effort to overturn and erase both court rulings.

Earlier this week Jan Constantine, General Counsel of The Authors Guild, testified before the House Judiciary Committee. Her written testimony is posted online, and it is everything that The Authors Guild's detractors fear the most.

The testimony focuses on the Google Books case, the HaithiTrust case, and the "need" to resolve the issues in the cases in ways that are beneficial to authors. This comes as no surprise, nor should it surprise you that, in 20 pages of testimony, there is no mention of the rulings which ended both of those cases (and expanded fair use in the process).

But the testimony does include misleading statements like:

To the extent Google’s unauthorized displays of books encourages readers to search at its ad-supported search engine, rather than logging in to Amazon’s retail environment, Google is hurting the sales of authors’ books. For this reason, and many, many others, authors and other rights holders should have control of when their books are copied in their entirety, and where their books are displayed.

Google, in other words, disrupted the commercial, permission-driven development of booksearch-and-display at online bookstores in order to gain a competitive advantage over other search engines.

On a related note, this written testimony is worth reading if only for the fact that it is the first (and probably the last) time that The Authors Guild has said nice things about Amazon. The novelty of that alone made this worth my time.

The Authors Guild has very carefully neglected to mention to Congress that the issues they want Congress to solve have already been addressed in the courts. Instead, The Authors Guild is asking Congress to pass new laws to "solve" the copyright issues in ways that effectively nullify the rulings.

Here's The Authors Guild's own summary of what they want:

1. We’re proposing that Congress empower the creation of a collective licensing organization (something like ASCAP or BMI) to deal with both mass digitization and “orphan” books. Such an organization would pave the way for a true national digital library, but it would have to be limited in scope, just as ASCAP is.

E. There would be a tribunal to go to if the licensing agency and an institution couldn’t agree on the fee.

Does anyone else see the problems here?

The first and most obvious problem is that the agency proposed here would "solve" an issue which had already been settled in court. It is also incredibly limited in scope, and is hobbled in ways that worry me.

In particular, this agency is supposedly intended to solve the orphan works problem (where no one knows who owns the copyright to a work), but given that participation is voluntary I don't see how that is possible. If you don't know the identity of the copyright holder then it is impossible for that person to sign up. This leads me to wonder whether stage two involves either a compulsory license or an opt-out license. In either case the cure is worse than the disease.

I would say it is clear that The Authors Guild has given up on directly fighting the court cases they lost and have instead decided to try to get Congress to overrule the courts. it's too early to say whether they will succeed, but I for one hope that they fail. As a creator, I think that my interests are better served by the fair use rulings than by the creation of yet another government agency which is supposed to help me.

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Nate Hoffelder

Nate Hoffelder is the founder and editor of The Digital Reader. He has been blogging about indie authors since 2010 while learning new tech skills weekly. He fixes author sites, and shares what he learns on The Digital Reader's blog. In his spare time, he fosters dogs for A Forever Home, a local rescue group.

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Speaking at the AAP annual meeting in late March, Rep. Jerry Nadler (D-NY), the ranking Democrat on the IP subcommittee, told the assembled publishers that while it would hold hearings on a variety of copyright topics, legislation on copyright was unlikely.

And something else. I haven’t read through the 20-page testimony file, but just going by the PW coverage and what AG cites on its page, it seems to me like the intention of their testimony was orthogonal to Google Books, at least insofar as the purpose of Google Books that was found to be fair use. The fair use ruling as it now stands doesn’t depend on whether they can find the rights-holders of orphan works or not. It’s been deemed fair for Google to make the exact same use of fully in-copyright works where everything about their provenance is completely known.

This seems more to be a reaction against the since-discarded aspect of the failed settlement that would have allowed Google to set up shop as an e-book store for orphan works. Which is a little odd given that the AG was one of the ones pushing for that settlement in the first place.

Right, that’s the point. It would expressly not allow selling the books. Just showing them online. They seem to be trying to foreclose against the idea that Google might somehow, someday be allowed to do that thing which the settlement had been ready to offer them on a silver platter.

But Google Books doesn’t sell the books anyway. They just show little snippets. Which is fair use, and which, oddly enough, the hearing from 1963 they cite suggested should be fair use, too.

Maybe the most important fact is that the Authors Guild, with its approximately 5000 members, represents only a very small fraction of the approximately 250,000 authors now publishing content. It seems ridiculous for the Guild to propose legislation that would affect all authors. The Guild is in fact obsolete in the self-publishing arena where each author is also a publisher and no guild is necessary as an arbiter between authors and publishers. (P.S.: The Guild may have less than 5000 members.)

Some industries have very high price barriers to entry. It is not cheap to ship your own CPU, or ebook reader, or open a big box store. Recorded music requires significant software and hardware to produce well, and often the aid of others. You can, however, self-publish a book these days for almost no money. This is going to drive the price down, and if anyone wants to try and make themselves more expensive to buy, or harder to find, that’s their loss.